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Exposure to Second Hand Smoke Sparks 8th Amendment Claim

The U.S. Court of Appeals for the Fifth Circuit recently affirmed in part and reversed in part a 42 U.S.C. § 1983 action alleging 8th and 14th Amendment violations.

Jerry Marcus, a Mississippi prisoner, filed a § 1983 action against prison officials alleging that his 8th and 14th Amendment rights were violated as a result of a cell reassignment, his inability to obtain personal hygiene items and long underwear, and exposure to environmental tobacco smoke (ETS). The district court dismissed Marcus’ suit in its entirety. Marcus appealed.

The Fifth Circuit affirmed the dismissal of all but Marcus’ ETS claim. Marcus’ allegation that his exposure to ETS “elevated [his] blood pressure and damage[d] his blood vessels,” was sufficient to state an 8th Amendment claim, the court held. The court remarked however, that it considered Marcus’ allegations likely to be “dubious.” See: Marcus v. Epps, 278 Fed.Appx. 350, 2008 WL 2048331 (C.A.5 (Miss.)).

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Related legal case

Marcus v. Epps